tv Key Capitol Hill Hearings CSPAN June 2, 2014 2:00pm-4:01pm EDT
and they do not have a lot of training in any particular skill. they don't have to be unemployed, but just underemployed in things like fast food were there is no skill required. host: where are these training centers? guest: all over the country. there is one importer rico. i went to one in oklahoma. a real mix. the programs start with the idea that some of them could be like the depression era work camps. they would be out in the middle of the country and you could some of them are in the middle of nowhere. welcome those who joined us on our website. several will be joining us on c-span today. those watching online are welcome to send comments at @heritage.org.
alwaysine viewers are invited to send questions or comments. hosting the discussion is elizabeth slatterly. her research focuses on issues such as the scope of the constitution's commerce clause, federal exemption, and election laws. she studies about the supreme court, judicial confirmations, the proper roles of the courts, and judicial interpretation. she is regularly contributing to a post on a heritage policy blog . please join me in welcoming elizabeth slatterly. elizabeth? [applause] thank you, john.
tomorrow morning the senate judiciary committee will hold a hearing on a constitutional amendment that would give congress the power to regulate raising and spending of money in elections. say amending the constitution is necessary to get dark money out of politics and to stop billion there's from allegedly -- billionaires from allegedly buying elections. the supreme court has determined that bans on money are bans on money are bands on speech. anyone with experience in running campaignsmoney is necessary to engage in effect of political speech. today we have a panel of experts to talk about the proposed amendment. in order to get what they have to say, i will keep their introductions brief. first we will hear from bobby burchfield. bobby is an experienced
appellate lawyer with expertise in corporate litigation. challenge to the mccain-feingold law. the half ofed on mitch mcconnell in a successful challenge to aggregate contribution limits in a case that was decided in april. cases,as argued appearing in courts across the country. he is a graduate of wake forest university and the george washington university law sc hool. from theill hear former chairman of the federal election commission. ec, he time at the ftc has been called a -- he has worked in private
joins a, and today he regulation practice. he also served as general counsel of the national republican congressional committee. he has been featured in papers and has appeared in national publications, including politico. members ofessed congress at house retreats regarding congressional ethics and appears on television. don is a graduate of notre dame. last but not least we will hear from the senior legal fellow at heritage. writes on a wide range of issues. within heritage as the unofficial inspector general of the department of justice, having written articles about
eric holder and various divisions at doj. out later this month. before joining heritage, he served as a member of the federal election commission and was counsel to the u.s. assistant attorney general for civil rights. politico and regularly appears on fox news as well as other national and regional outlets. he is a graduate of the massachusetts institute of technology. now i will turn it over to bobby. >> thank you, elizabeth. we are here today to declare victory. advocates ofthe campaign finance restrictions are conceding that the restrictions on campaign speech they want simply cannot be
squared with the first amendment. although there is no chance that the proposed constitutional amendment will be approved and ratified, defenders of free and robust political debate should not left the significance of this moment pass. communitytyled reform has conceded their restrictions cannot be squared with the first amendment. victory. i wish it were so. this afternoon i would like to make three basic points. first, the mccutcheon decision is plainly correct. as you know, the campaign-finance regime contains two types of contribution limits. these limits impose a dollar cap on the amount of money a contributor may give to a candidate per election or political committee per year. congress has determined that the non-corrupting amount an individual may give to a federal candidate is $2600 per election.
5200 dollars for a primary and general election. the aggregate limits impose the cap on the total amount of money a contributor may contribute to all candidates and all political two-years in a election cycle. her contributions to candidates, the aggregate limit is 48,000 $600 per cycle. once a computer is $5,200 to nine candidates, he is at $46,800. he maketh only $1800 to all other candidates. give is perfectly legal to $5,200 to the first nine candidates, why is it a felony to give $1800 to the 10th candidate? this makes no sense. put simply, you cannot corrupt ith the 10tho candidate by having already
given a legal contribution to edited jones, one of the first nine. the motivation for the aggregate limit is to equalize political speech. few people can give more than a few thousand dollars, so the aggregate limit keeps more generous donor's from giving too much. decades of supreme court precdent have -- edent has made clear. defenders of the aggregate limit ecedent wouldt pr not allow them to defend them measure. they defended it as a measure to prevent circumvention of the base limits. unscrupulous intruders they said would try to channel contributions to candidates and political committees to the preferred candidates. this led them to rely upon what alito referred to in the oral argument as speculative
hypotheticals. even justice breyer's dissenting opinion allows three hypotheticals to suggest an inch could relist router will go to great lengths to obey the base limits if there is no aggregate limit. two quick responses. persons knowledgeable about the campaign-finance laws and regulations, as many of you are, will see that gestures prior best -- moreover, even under the aggregate limits as they existed until they were struck down, picked routers could give the maximum amount of money to nine candidates. if contributors were able to channel excessive contributions through other candidates or committees to a preferred candidate, there should be evidence, one example in the last four decades, one would think, of this channeling in prior election cycles. had no suchrnment evidence. first amendment rights should
not be restricted based upon so much speculation. the aggregate limits made no sense and the court correctly struck them down. my second point is that mccutcheon like citizens united did not really break new first amendment ground. rather, those decisions returned to established first amendment principles after a decade of deviation. the mccutcheon decision is grounded on two such principles. first, speech equalization or leveling the playing field is offensive to the first amendment. this precept is a cornerstone of a case in 1976, and buckley return on the landmark in 1964ts of a case from an associated press versus united states in 1940 five. this desire to equalize speeches to limit the speech of the wealthy so they cannot dominate debate is i believe a major purpose of campaign-finance
restrictions and a key motivation of the effort to change the first amendment. the second fundamental precept underlying mccutcheon is that avoiding corruption or the appearance of corruption are the only governmental interest recognized under the first amendment for restriction political giving and spending. moreover, in this context corruption means quote corruption, the giving of money for political favors. decadescept eight back -- this precept date back decades. buckley andheld in confirmed in citizens against rent control of preventing corruption or the appearance of corruption are the only legitimate and compelling identifiedat were for restricting campaign finances. it continued, the hallmark of corruption is the financial quid politicalllars for
favors. the court began to deviate from these principles in the late 1990's. majority began to expand this anticorruption rationale to corruption, which means an individual or corporation had too much money. access corruption, which means by giving money you might be able to shake the senator's hand, and even gratitude corruption, meaning if you gave money to an office holder they might be grateful for it. this deviation reached its peak in the mcconnell decision in 2003, which upheld the sw eeping restrictions. citizens united and mccutcheon have reversed this trend and returned first amendment jurisprudence with basic principles. cries from the reform community about how the roberts court has ignored president and rewritten the first amendment are simply a stake in. my third and final point day is
that the self-styled reform community is trying to read into the first amendment their own view of what in the credit government should the. by its language, intend to engine, and the principles applying it, the first amendment or text the market place of ideas, promoting discussions with the assumption that a free people can assess for themselves the strength of the arguments and make informed elect moral decisions. this means the government is not silence anyone. it is not limiting anyone. it does not refer you to debate. in recent years the self-styled reformers have begun to suggest that free and robust debate does not promote democracy, but threatens it. they contend allowing the wealthy to spend -- to speak more can drown out the voices of the less wealthy and that the very volume of speech in certain quarters threatens to delegitimize, they would say corrupt, the democratic process.
dissent appears to adopt this argument. this is a very troubling argument, and those who cherish the first amendment must push back strongly and vigilantly. this notion that the first amendment poses a duty to limit speech to protect democracy free-speech guarantee on its head. other provisions protect the integrity of the process, but the freese beach clause of the debatemendment protects so the other provisions can work. this notion that too much speech is undermining democracy is in accurate on several levels. the rich do not advocate a single viewpoint. think of sheldon abelson and george soros. they do not agree on anything. there are strong voices on the left and on the right, not just in privately funded campaign advertisements, but also in the broadcast in the print media. only a small portion of those
with significant resources, even bother to participate in debate. among those of limited means portion is small. in order to equalize debate among the haves and have-nots, severe restrictions will be necessary. the quantity and the quality of discourse would certainly suffer. let's trust the public to listen carefully to the most robust debate possible and to make decisions based on more information, more debate, not less. has is always -- that always been the premise of the first amendment. thank you very much. [applause] >> good afternoon. whatt to begin by echoing i'll be said about declaring the paris. my reaction when i heard that
senate democrats were going to push an amendment to the constitution changing the first amendment was they are amending that they are doing is unconstitutional. over two centuries, we have agreed that the idea of robust political discussion is necessary and -- in a representative democracy. when you elect representatives to go to your state capitals you do not micromanage everything they do. you trust their judgment. the way to ensure their judgment remains pure and at least consistent with what the people want is that the people can speak out and criticized those folks once they get in office. that is how we do things in america. i'm not sure how they do things outside of america, but i know here when you elect folks you have to be able to criticize them. if you cannot, they may lose touch with the people. what we have seen recently is a real assault against this sort of approach.
when the citizens united opinion came down, there was first shocked and disbelief on some parts of town, other parts of town were doing dances. but really what came about after that was an amazing site, from president obama during his state of the union address making what was probably an unprecedented , claiming citizens united opinion would usher in in for national money that was simply not true. you know who was right and who was wrong in that. irs do whataw the the irs did, asking all sorts of bizarre questions of people from what sort of nukes they read to what sort of prayer groups they went to and the like. this is one that flashed on the scene and disappeared. the idea oft of monitoring newsrooms just to check the balance.
remember that one? at disappeared once people figured out what that was about. that's not forget that because that seems to be the sort of thing that in america we should not be doing, and then now the most recent is you have the majority leader of the senate redefined seeming to the use of special order speeches and four statement attacking various individuals, a couple in particular, for speaking their mind, if nothing else. it is a bizarre time in which we live, and just when one thinks it cannot get any more peculiar, they are now pushing amendment to the constitution to essentially change the first amendment. they are doing it smiling and they seem to think that somehow the wind is at their back. frankly, i think it is political theater. there's no chance of this becoming the law. senate democrats are in trouble. they know it. any reputable elliptical --
political tracker will tell you this, whether charlie cook or stu rothenberg or any the folks who will tell you senate democrats are slowly losing their grip on power. i suppose desperate times call for desperate measures. now they are attempting to amend the constitution as part of their grandstanding to silence the critics. it is a shame. why do we have the first amendment? it is notlost is there because we need a placeholder in the bill of rights. there's history there as to why we have it and it goes back to when we were under the rule of england, and for about a hundred years england was and to a certain extent has had a different view of free speech than we do here. essentiallyg order banned all sorts of public speech, newspapers, and the like. they had to be licensed and by
the crown and later parliament. the kind of speech they did not like the most was the kind of people like the most which was critical of the crown of england. they said you had to license it. ban, soeffectively a you had to register all print materials. there were some draconian provisions that were attached. he could be arrested. the stamp act, remember this from history class, that was in 1765, had nothing to do with the stand to put on mail pieces, but had to do with the fact that the crown required that a state be placed on all printed materials. in order to print anything in the colonies, one had to pay a tax. you had to get permission to speak yet again. we fought a revolutionary war over this concept, and as part of the deal adopted the constitution, the bill of rights, and the first of it which contains the freedom of
speech and association among others. now here we are in the midst of an election battle where certain politicians are gripping to power as only politicians can and now they want to change the rules of the game and prevent people from criticizing. not unlike included before the revolution and led to our revolution. here we are, and what are they trying to do? proposedcopy of the amendment front of me, and it it says to advance the fundamental couple of equality for all and to protect the integrity of the legislative and electoral processes, congress or how the process to regulate the raising includingng of money the setting of limits to the amount of contributions to candidates for nomination or four elections to federal office and the amount of funds that may be spent by and in support of or opposition to candidates. expanses power to
the states. what awers regardless of state constitution says it would trump that. what does this mean? it invokes the fundamental principle of political equality, whatever that means. for all. yet there is an exception in the later proposed amendment that exempts out the corporate press. it says nothing in this article shall be construed to grant congress the power to abridge the freedom of the press. that means if you are the incorporated media which it is the mainstream media today, it seems you are exempt from this. if you are a blogger or someone who is maybe on the cusp of being media, watch out, this seems to empower congress to regulate you or otherwise intentionally ban you from speaking. what some of this means, who knows, and is one who has done nothing but election law for my career, i scratch my head and wonder why they have to do this,
because when they want to pass an amendment that says congress shall have the power to regulate the spending of money, congress regulate the power to the raising of money. upholdsversus alejo contribution limits. for the most part courts have already upheld the ability to limit contributions. the government has -- with banning certain kinds of speech. much of it is still banned, the so-called coordination with candidates, which is subject to a multi-factored test. they have the power to do that. so the question is what are they doing? they are going to try to limit independent speech. what is interesting to courts have upheld some disclosures independent speech which six months ago was supposed to be the answer.
that was supposed to cure all the ills in our democracy, but they have given up on that and move to more radical changes which is the constitutional amendment. when you read this text you think what the courts have already upheld, what are they getting at? they're getting at the tv advertising we are seeing these days despising senate and the cuts for what they are doing. the question is, why cant we do this now under current law? what is amazing is many of the ads that people are currently complaining of are not covered by current law. you do not even file a disclosure report, which is as it should be. if you are near an election, mccain feingold imposes additional requirements. this sort of ads we have seen lately are not election ads, they are issue ads, speech designed to influence the acts of politicians. with that i have a few questions
for the sponsors of this, see if they can answer these questions. maybe they will answer them tomorrow. they had a hearing several weeks ago which was supposed to be a campaign finance hearing and at the last minute they added retired justice john paul's evens to the witness list and started talking about amending the constitution. i testified about how the party committees have been marginalized. they did not ask a single question. they're more interested in talking about amending the constitution. here are some questions. under this amendment regulating electoral processes, integrity of legislative offices, could congress prohibit a labor union from communicating with its members if that communication affected the legislative or campaign process?
i would think the answer is yes. what about other membership organizations him the nra, sierra club? could congress ban communications between those groups and their members regarding politics? seems to be what this may permit congress to do. and the speech selective? it does not say anything about -- it does not have the clarity of the first amendment. it talks about political equality for all. when you read the dissent in mccutcheon it seems that political speech equality means you can ban some speak and not other speech. thatems far-fetched somehow speech equality could lead to some people being banned and not eating ban. think into our recent history. when the fec considered saidenheit 9/11," the fec
it was fine because it was a commercial movie. when citizens united came in and said about "hillary," fec that was banned. i cannot tell the difference between the two movies. he say bad things about the republican, you're fine. if you say bad things about a democrat, wraps you're going to be banned. what about pastors and churches? can the government now get in there and tell a priest he cannot talk to his congregation because it may somehow have something to do with politics? this amendment would seem to permit congress to do that. what about bloggers? what if your companies try to make documentaries that the ia do notm med consider?
we have seen it with the citizens united movie. let's not forget the facts of the case. it was about a film and whether it could be seen and bought on pay-per-view cable by adults in the privacy of their own home. no, mccain feingold said you cannot watch that movie in the privacy on your own home on pay-per-view cable. that was the fact. i went to this report. wes is not a situation where are talking about we are just going to ban campaign stuff. we're talking about banning movies here. what about oaks and movies generally? -- what about books and movies generally? one of the book says you should not elect someone to be president? does this amendment empower the government to ban the book? i'm afraid that does. this is why this needs to die so we can contribute to criticize our elected officials as we must
in an elected the marcus e. thank you. [applause] in an elected democracy. thank you. [applause] >> i will sit down because i think they have said everything they need to say about this. basicallywe put up is the constitutional amendment, the important parts of it. you will notice as don said it would not only limit, give congress the power to limit the contributions that can be given to a candidate directly and also the expenditures at a candidate could incur trying to run for office, but you will notice is givesays that it would them the power to limit the amount of funds spent by in support of or in opposition to a candidate. what that means is it would give congress the power to limit independent spending by
individual americans. if you think that congress would never do such a thing, i should tell you that in fact in the when congress passed the modern version of the campaign finance laws that we have operated now under 30 years, they actually passed a expendituresndent by organizations and individual americans limiting them to only $1000. as aneant if you individual did not like somebody running for congress in your particular state and you wanted to take out an ad in your local newspaper, all on your own, no coordination with any other candidate, to try to convince your neighbors not to vote for that particular candidate, you
could not spend more than a thousand dollars doing that. so congress already tried to do this in the early 1970's. in the buckley decision which is -- the seminalse case, 1970 six, in which the supreme court came up with a standard it uses in this area, which is to say that laws that prevent corruption, the appearance of corruption, will be considered acceptable and can firstd to somewhat limit amendment rights. in that case the supreme court through out that thousand dollar limitation on independent expenditures. kind of ideashe congress previously had about it. if this amendment passed it could pass a law about that immediately and there's nothing anybody could do to stop it. if congress said i think thousand dollars is too much, for anybody to spend on
ly on political speech, they could crank that down to $500, $100, to five dollars, and there is nothing anyone could do to challenge it, because they would have changed the first amendment to do that. supporters of this amendment in all four to one them, and i find it absolutely shocking that almost half of the united states senate would for the first time in american history support something that would roll back part of the bill of rights, something unprecedented, that has never happened in this country, they say when you restrict the amount of money that individuals can spend, raise or spend them that is not the same as restricting free speech. as the supreme court said in the buckley decision 30 years ago, virtually every means of commuting ideas in today's mass
society requires the expenditure of money. from the humblest handbill two runlets, to political ads during prime time, tv, radio, to putting up billboards, putting up yard signs or in the modern internet age, putting up a website, all of that costs money. and the days when you could stand on a soap box in the boston common and speak politically to get people to accept your ideas or to vote for you as a candidate are long gone, and even then if you wanted to be effective it cost money. again, those who say the framers never imagined that the first amendment would protect money spent on political speech, political activity, excuse me, in one of the greatest works america that helped spur our revolution, thomas paine's
sense," it cost money to distribute it. the federalist papers were printed in broadsheets which were the equivalent of newspapers at that time, all of which costed money. the idea that if you restrict money you are not restricting free speech is ridiculous. that is the same thing as saying if you restrict the amount of money that a newspaper corporation like "then you're times" can spend, that is a ridiculous claim. we talked about would not just overturn the citizens united decision and the mccutcheon case, but it would overturn the buckley decision, the case from 30 years ago, because it would also overturn the supreme court said in that case about expenditure limits.
people do not realize back in the 1970's congress did not just pass contribution limits. that is what we have lived under now for 30 years. back then they limited the amount you could give to a candidate to $1000. it stayed that way for 30 years. it was raised to $2000 in 2002 and indexed for inflation. at the same time in early 1970's congas put in and expenditure limitation. they said that people running for congress and president would be only be able to spend a certain amount of money to run for office. the supreme court threw that out because they said that is a direct limitation on your first amendment rights. when you limit the amount of money that a candidate can spend you are directly limiting their speech. you are limiting the amount of resource they can send out, the amount of ads they can do. you are limiting their ability to rent a hall and go speak live
in person to voters. they threw that out. this amendment would get rid of that limitation that the supreme court came up with, and once again, congress could actually pass a law limiting how much you spend. for those of you who think that is a good idea i remind you that once congress but the contribution limits in in the 1970's, you can look at a graph of the incumbency rate of members of congress, and that line will be like this. it just goes steadily up. why is that? because limits on contributions help incumbents. it is very tough for a challenger to take out a sitting member of congress. they do not have the name recognition, contact us, it costs a lot of money to knock out a challenger. when you put on limits on contributions, you're making it much easier for incumbents to stay in office. if you put in limits on expenditures, which as with has been shown by history, congress
has demonstrated it wanted to do, he would be making it an even tougher thing for challengers to come in and knock off members of congress. i will tell you that i do not think it is just a coincidence that in january 2010, when citizens united was decided, what happened in november? in november 2010 we had the most challenging congressional races since the 1930's. that is because directly of the citizens united decision and the fact that suddenly it was independent political expenditures come of the ban on that, had come out. i want to talk about something just regally mentioned this. this shows what congress could do if this amendment were passed.
the citizens united decision, there was something unusual in that, in that were there were two oral arguments for the supreme court, not just one. in the first oral argument i attended, roberts asks a happy little -- asked a hypothetical question of the government. it was a concern the electioneering communications provision. this is a provision that congress had passed in 2002 that ability to bands the run any kind of radio or tv ad 30 days before primary and 60 days before a general election that named the candidate for federal office. the problem with that band was you could be running an ad, you could be the sierra club, and you could be running a political ad about a bill that was going to be voted on by congress on
october 15, that had to do with the environment. a congressman who was running for office, if you simply told voters, this is an calltant bill coming out, your car is run and tell them to vote against this bill, you would be breaking the law if that congress on was up for election in november, even though your ad said absolutely congressman inhe terms of voting for or against it in the upcoming election. it is one of the provisions the supreme court threw out. that provision only extended to radio and tv ads. the chief justice asked the government, if we uphold this provision, could it be fixed ended the books by the government? discussions the system, and in the end and so vote for x, could the government
ban that? the answer given by the citizen -- the solicitor general was we prohibit the publication of a book. i find it amazing that the solicitor general's office of the united states would give such an answer that they think there is nothing wrong with in the united states of america. some will say there's too much money in politics. the intent of this is to get money out of politics. i have to laugh at that. he came this up before down here. in 2013 american company spent $140 billion advertising products across the united states. if you checked several of the websites that total up political spending you will find in the $62 cycle we spent about billion on elections. that is about the same as committees and advertising fast
in united states last year. this idea we are spending too much money and restricting it is the right way to go when we have such a great first amendment increasinges in debate in this country i think is just wrong. the more political speech we have, the better, and i am shocked at the idea that congress -- members of congress would be in favor of restricting the first amendment. these are complicated issues, but i want to boil it down to this, because this is what this amendment would allow if it was passed. many of you may know that the doesal election commission impose civil penalties on individuals who file eight who violate-- finance laws. if you knowingly and intentionally violate the law began the rescued it criminally by justice and you can go to
prison for up to five years. what a lot of people seem to david bossi, the president of citizens united, because of the fact that after citizens united it was not allowed to advertise for this documentary made about hillary clinton, because if they had gone ahead with it after he had advised that he cannot do it, that would have been considered an intentional violation of the law and he could have gone to federal prison for five years and be prosecuted by the justice department because he made a movie. i do not know about you, but i do not want to live in a country in which congress has the authority to pass a law that would put someone in jail for making a movie or political documentary, writing a book, setting out a voter guide, pushing a pamphlet, or taking at a political ad, or because a
candidate spends $100 more than some artificial expenditure init that the incumbents congress put into limit the amount of spending of anybody who wants to try to throw them out of office. i think this pilot the most basic tenets of freedom and liberty on which this country was founded and that the bill of rights was intended to protect. it is not the kind of country i want to live in. thanks. oh, and one more thing. i did think there was an amendment at heritage that would willto propose, and you see it is actually funny, it is exactly the current first amendment we have. [laughter] we will open it up for questions from the audience in just a minute. we have three ground rules. stateor the microphone,
your name and affiliation, and ask a question, do not make a speech. if there are any questions? ok. down here. what do you think is the real motivation here for the left promoting this? this is popular or this will turn out to be a huge popular mistake. and do you see any way that, given the fact that now 22 or 23 states have called for in article 5 convention for ia balance budgets, the left might hope that the convention occurs that could turn into a runaway convention that they could use to propose this amendment? go first.
it is being driven by two things. first is pure politics. second, i think that which is more scary, some of these guys believe this is what we should do. as i mentioned in my comments, it is an election year. election years calls people to do things that they otherwise would not do. we certainly see a certain drumbeat instigated i democrats -- by democrats to try to take various messengers and messages, and i think this fits hand in glove for that. it is designed to intimidate people who are criticizing them. this is nothing new to the extent that we have seen governments do this throughout our history. we have not seen our government do it at least in our recent history. notwithstanding efforts to limit to have it struck by the supreme
court, the idea of such targeted efforts i think our president. i think some of them believe it. judge walker called dragon -- called it radical egalitarianism. the question is what is quality? when we see this play out, quality seems to have an orwellian notion to it where some are more equal than others. i think that is part of what is happening here. long term it is bad for the people, and for the incumbents. besttimately is probably for those who get to make these decisions. when one looks at the text of the amendment, i am struck by who gets to the police limits on campaign spending. we know from the federal taxpayer funded residential elections that the fec used to
employ sorts of people and employee certain types of audits. fec several years. there are people who do not place its theory -- play it straight. there was some wind at the -- there was someone at the fec. the idea you will have a decision-maker over these thing is a fallacy. the same about that carve out the freedom of the press. bureaucrats, imagine having to go to the department of motor vehicles and convince them you are the media. do you want faceless bureaucrats doing that? has gone a long
way in d.c. and virginia. it is convenient to scapegoat. as far as a convention, that little long-term thinking of the sort we are not seeing. strategy between now and november, and you see incumbents clean the power -- clinging to power. >> you have something you want to ad? >> we are dealing with a well-established powerful and well-funded constituency that decades advocated restrictions on campaign finances. interestingly, one of their big issues is the so-called arc of money issued. -- dark money issued. -- issue? where do they get their money? we think we know where the money is coming from, but they do not
disclose it. there is a bit of hypocrisy there, but there is also a strong constituency for increasingly severe restrictions on political speech. thatr the convention, and is a concern, but i do not detect a great public groundswell for these sorts of restrictions, and i think most people understand that the purpose of the first amendment is to promote free and robust debate. the public seems to like that. awould be surprised to see constitutional convention go down that track. it is a possibility. i work for free speech for people. i meant to ask two questions. i think there is a perception that spending on campaigns, both in direct commission and in
independent expenditures, has increased dramatically since oakley and citizens -- since buckley. could you say something as to the accuracy of that perception. are you aware of any opinion polls about citizens united and about how the public feels about the current campaign finance rules. >> i will go first. i am not aware of any recent polls. i have seen news coverage of polls, and they say no one likes citizens united. then when i read the poll, i realize the question is skewed. i do campaigns for a living, and i realize when you ask a question a certain way you will get a certain ask you. when you're asked a question, you think they get international corporation should be able to buy elections, 80% say it is a
bad idea. i wonder about the other 20%. if one were to ask the real question, should the government be able to ban a movie that talks about a politician from pay-per-view cable so you cannot watch it in your home, which is the fact of citizens united, the poll should come out exactly the opposite of what most of the polls say. than an informed question and not the superficial question that talks about the james bond bad guy behind election kind of thing. in absolute dollars, spending has increased. spending on everything in america has increased since buckley. at the time a buckley a brand-new mustang cost about $3500. contribution limits imposed by buckley were $1000. if one were to convert the thousand dollar limit to today's dollars, it is about $4500. state parties are limited to
accept $10,000. if one were to index that, it would be $40,000. spending has gone up, but the way spending has changed is more of the story. candidates have lost their ability to be the central voice in democracy in large part because of the reform laws. committees is to be the natural ally to echo candidate voices. money has moved away from the hoops and parties that are not as transparent, accountable and not as long term. yes, the total spending has gone up, but when compares it to a verypending, interesting approach, compared spend onther people advertising, it is a drop in the bucket. ultimately it is not about the money, but about what money buys. the cost of tv advertising has past 10ted in the
years. used to get a week of television in a house race for up to 400 grand. now it is a million dollars week. posters has gone up. compliance costs have gone up to make political phone calls that require an ever-changing set of review processes comply not only with law but an ever shifting group of state laws. everything has gotten more expensive. bottom line, even though spending has gone up, there is still not enough money in politics to keep up with the actual information flow that i think voters deserve. ultimately the answer is more information for the voters. it takes money, and advertising costs a lot of it. >> i agree with all of that. i would add to the last point, this is the american democracy,
the american electoral system we are speaking of. speech,ore debate, or more focus on -- more speech, more focus on the issue, television, and adds, that is a good thing. i do not think it is a bad thing that people are erring a lot more television ads, and they are because the restrictions, because of the first amendment applications, have rolled them back. the second thing i would say is -- is withe polling regard to polling. it is true these questions, and i have been on panels to discuss polling, the questions of whatever the results of the polls, the questions are almost always slanted one way or the other. i have not seen a question that fairly present the issue in my view. issues. be complex
even if 85% of the american public wanted to impose restrictions on campaign speech, that is what the first amendment prevents. the first amendment for tex us from that tierney of the majority. it protects the right of individual persons to say unpopular things. the is the spirit of american democracy. i think that is also a very good thing. . i am curious about how you see this playing out in the senate, the actual debate in the senate when senator reid brings up this amendment proposal. will there be an alternative proposal that will be a straight up or down vote on this proposal, and would you predict it will end up being a party line vote, which will be far short of the 2/3 needed to pass
it? >> let me take a first shot. i am not sure how the politics of this play out. four democratic senators in close elections, going on record as to change the first amendment such a popular thing. i could see a really bold from the majority leader on this issue. , they have enough votes power to keep his caucus in line on this, but to me it is not a foregone conclusion that you will have all members of the democratic caucus stand up and vote party line on this, that changing the first amendment is a good thing. >> i would say something that tells you an indication of this, i think is the fact that the administration miscalculated recently why they got the irs to proposed new regulations for
501(c) four organization's. those are the advocacy organizations that are used, the nra, sierra club, and the administration proposed these new regulations that would have severely restricted the political speech and act committee of these organizations . the irs was overwhelmed with public comment in the negative. 50,000t over 100 comments, more comments for that one proposed regulation than all the other regulations that treasury and irs proposed in the last seven years. they were overwhelmingly against this change that i think they thought would be popular. as a result the irs has back off and said we are not going to put out these regulations this year. we have to take into account all these comments on it. as an indication of how they have miscalculated on this issue.
>> i am at the columbia school of law and a law clerk. laws that interferes with any type of political speech are subjected to strict scrutiny, and that the government needs to prove there is a compelling interest -- the wording is to advance the fundamental principle of elliptical equality -- of political equality. have any of the democrats showed any type of narrow lee terry tailored really interest? >> no. what they are trying to do is end-run the idea of strict scrutiny, which was made up.
says,endment says what it but it says congress shall make no law. it means that congress shall --e no law the idea a question, that political equality for all, a new principle being interjected here in the world of speech, and it is that language that would empower congress in and of itself, a principal the court would use down the road to level the playing field. who knows, but what is clear the have not presented anything in the lines of analysis on this. this seems to be completely developed for the newspapers and the soundbites, and maybe there's some white paper i have not seen. i'd it exists. -- i doubt it exists. >> that goes to the point i was thinking about, there are democratic ross s limits on the first amendment, and in some
instances the first amendment should be used to suppress speech rather than promote speech. that is a troubling concept that you see notions of that working itself into the dissent. >> we have time for one more. hatch'sh senator office. you mentioned as it reads now it could limit vacations between a group and its members. could you say more about that? i'm not sure i see that. >> under current law and even prior to citizens united, when corporations were banned from sponsoring certain political communications, both corporations and labor unions were exempted to varying degrees when it came to those identical communications. if i were corporation x or union
ask and i decide to run an ad that said the against senator so-and-so, if i've published that the plea prior to citizens united, that would have been illegal. but if i send that to a restricted class, which is a union to its members, that was exempted. notink that was driven by just the speech concerned that the associational concern is also guaranteed by the first amendment. congress, inwers the name of political equality for all and to protect the integrity of legislative processes -- this is also legislative advocacy -- and expressly empower congress to regulate the raising and spending money and equal funds to respect -- in respect to federal elections, i don't know how you can read this other than to say that congress would have the power to limit the ability
of a labor union talk to its members about politics or any other membership organization. -- i wouldmagine have a field day writing tv copy on this, the idea that democrat to basically empower the government or otherwise union frome organizing. very dangerous. my point is i don't know what this means. i am looking at it compared to current law. it must change from law somehow. -- it must change current law somehow. we don't do it simply for the benevolence of congress, but the first amendment. but here, this is going to change. to the bureaur outside speakers, please join me .n thanking our panel
quick look. the need toith speed up a bit but he may getting factor is the same, that football is an action game and baseball is a drama game and that a lot of the excitement of baseball is the pitches. fox does a great job with the cutaway shots to people in the tension. point -- maybe that is a comment on my romantic life. [laughter] i don't know where that came from. [laughter] i'm on c-span. fantastic. [laughter] [applause] >> that entire discussion is coming up tonight with remarks from samuel alito, george will, and temperature and as they talked baseball and its place in american culture.
>> from a policy perspective, the way this should work is congress should appoint an has the authority to manage the spectrum resources of the country and look at the highest and best uses of those resources so we can continue to serve all the important functions, national security functions, but also driving the spectrum needs of the industry for their continued investment. tonight at 8:00 eastern on "the communicators" on c-span 2. >> the supreme court ruled unanimously that an international chemical weapons treaty should not have been used to convict a pennsylvania woman who tried to poison her husband's mistress.
she was eventually found guilty of violating an international chemical weapons treaty. the supreme court disagreed saying the intent was not to aevent an amateur attempt by jilted wife. this is about an hour. case 12 15 eight, bond versus united states. the court, if the statute at issue here really does reach every malicious use of chemicals anywhere in the nation as the government insists, then it clearly exceeds congress's enumerated powers. this court case has made clear that it is the bedrock principle of our assistance that congress lacks the police power without regard to a jurisdictional element or some nexis to a matter of distinctly federal concern.
the president's negotiation and the senate's replication of a treaty with a foreign nation does not change that bedrock principle of our constitutional system. valid andaty is implementing legislation seems to largely copy the words of the treaty. without adding anything. >> i guess i would quarrel with your premise. it is true that the convention in the statute used similar terms in 10 or -- terms and terminology, but there is one important difference and that differentiates this case. that difference is the convention itself doesn't directly regulate individual conduct at all.
>> but the convention tells the state parties go regulate individual conduct in exactly the way that this convention regulates state parties. and then with the legislation does is just a mirror the convention as the convention contemplated. >> to be quite precise, with the convention says, article seven is that each nation state that signs the convention agreed, in accordance with its constitutional processes, to pass penal laws that make unlawful for individuals, conduct that would violate the nationstate. when the government does that
through penal legislation, there is no reason why that penal read through -- penal legislation should -- >> why not? doubtg there can be no treaty iscal weapons at the forefront of our foreign policy efforts are now. look at the syria situation alone. it would be equally ironic that we have expended so much energy criticizing syria if this court were now to create legislation to implement the treaty as unconstitutional. consider the impact on foreign relations. if it is ok to regulate the possession of marijuana, a purely local crime, why is it unconstitutional to regulate the
use of something that can kill and or maim another human being? don't understand where the disconnect is in terms of our federal or state system. >> i think it gets down to the racial on oneween hand and lopez on the other. it is a classic and classical way to rig i to basically prohibit certain items from congress. >> there's no dispute that these chemicals were transported along interstate lines. that is not even disputed in this case. >> i don't think it was really disputed in lopez. but the firearm would have to have crossed state lines. the problem and lopez is the federal statute was not structured in a way that had a jurisdictional nexus that made the statute only applicable as a --
>> the government didn't even asserted. it asserts it now. but as we took the case, the issue was whether the treaty supported the laws. >> that's true. on the other hand, i would say we think the commerce clause have the same basic defect as the -- >> do you think, mr. clement -- could this treaty have itself regulated individual conduct? could the treaty have been self executed? >> that is an interesting question. if there were a self-executing treaty to impose criminal prohibitions, i don't think there is any treaty like that. if there were one, i would say that a permit -- it violates the
constitution for the same basic reason that this legislation does. >> where would you find it in the constitution? there is clearly treaty power that does not have such limitations. if you go back to the founding history, it is clear that they thought about kinds of subject matter limitations. in james madison and others decided so consciously not to oppose them. where would you find that limitation in the constitution? >> i would find that in the structural provisions of the hostages and and the integrated powers of congress. the enumerated power is the treaty power. so you have to find a constraint on the treaty power. where does it come from? >> it comes from the structural provisions to the constitution. if we had a suffocating treaty -- i would think that there might be a 10th amendment
objection or enumerated power objection, there might be an objection to that treaty. >>. you think the word treaty has some meaning? going back to the beginning of the country, there have been many treaties that have been implemented in ways that affect matters that otherwise would be within the province of this dates. -- the states. one of the objectives of the constitution was to deal with the treaty power, to deal with you issue of debts owed to british creditors. there have been cases about the property rights of foreign subjects tom about the treatment of foreign subjects. until fairly recently, certainly until generally after world war ii, all of those concerned matters that are a legitimate concern of a foreign state. that was the purpose of the treaty. can't we see something in that,
in the meaning of the treaty, what it was understood to mean when the treaty was adopted? >> i think that's right. i did not mean to fully accept the premise that there is no limit on the treaty power whatsoever. it's important to recognize that in the non-self-executing treaties, there's a real him opportunity to leave for another day the question of whether the treaty itself is valid. sometimes a treaty is not self executing precisely because the senate recognizes -- >> if you had been the president's council, would you have advised him it was unconstitutional to sign this treaty as written? >> no. but that's because it's a valid, non-self-executing treaty by its terms. it doesn't do anything to directly regulate individual him conduct. if i were the president's counsel, i would have said, i don't think this requires us to have any law that applies to garden-variety assaults with chemicals. if we need that, the states are
absolutely ready and able to shoulder that task. there's no state in this country that doesn't have a general assault statute that would be covered by this conduct. there's no state that doesn't have a murder -- >> the victim many times went to the state police and said, please help me. they turned her away a dozen times and finally they said, go to the post office. you are arguing that this in trenches on the state's domain. it wasn't until the state referred her to the post office that she got any [indiscernible] >> the state of pennsylvania executed its discretion not to pursue this matter. i don't think the government
says that that exercise put is in violation of our treaty obligations. our treaty obligation is to have a law that prohibits this conduct, which the states to do. the treaty obligation is not to make sure that every single malicious use of chemicals is prosecuted by the state or local officials. >> could i make sure i understand your testimony? say with is to respect to every prosecution under this treaty, a court has to ask whether the prosecution has a significant nexus to national or international concerns. is that your test? >> no. i would say that the one thing i think i know from this course -- court is that the federal government does not have a police tower. as i look at the statute, it can be saved by creating a jurisdictional element.
or, if the statute has his control character, the least when applied to -- general -- general character, at least when applied, it cannot be constitutionally applied. >> i thought the test i articulated was out of your briefs. if you're suggesting that's not the test, give me the test that we're supposed to ask with respect to this case or any other as to whether the prosecution is unconstitutional. >> it's whether the federal statute exercises the general police power. >> that sounds like a facial challenge. i thought you made very careful to talk about that this was as an applied challenge to this particular prosecution. >> the only relief i'm seeking is to have my client's conviction vacated. the reasoning of the court may employ in vindicating my challenge may suggest the statute is unconstitutional in
some or all its different applications. >> you are saying if the statute extends to things that we have generally thought of as part of the police power, that sufficient? >> if it criminalizes conduct, that statute exceeds congress's power. that was the case in lopez, in morrison. >> nexus to a national concern is what i understood you to say in your brief. let me give you a hypothetical and you tell me whether your test meets it. let's say it's the same convention, except it relates only to sarin gas. as a chemist out there, and implement the legislation mirrors the convention. he manufactures sarin gas.
he sends it through the ducks -- ducts of a house and kills everyone in it. does that have a nexus to national concerns? >> it does. sarin is something that congress could prohibit in all its uses. as i understand how the statute applies to sarin gas and other things on schedule one, those things are unlawful. what is unusual about the statute's application to something like potassium die chromate or vinegar or whatever you have is that most of its possession and usage is perfectly lawful. what makes it a chemical weapon in the government's theory is when it is used purely interstate in a malicious way. >> in my hypothetical, and you did not run away from it all, it is a completely domestic use. a chemist did not like his
neighbor and used to sarin gas. you're saying the difference is what the treaty makers did was to find the category of chemicals more broadly. but i want to know is, you are imagining a world in which judges day-to-day try to get inside the head of treaty makers to think about, in this case we understand there's a national interest in regulating sarin gas, but we don't think there's a significant national interest in regulating some other chemical or some other chemical pursuant down the line. it seems to be a completely indeterminate test and one that would have judges take the place of treaty makers in deciding what is in the international and national interest. >> i think our approach to this case avoids judges being put in that position because we distinguish between the validity of the convention and the validity of the implementing
legislation. as the implementing legislation, we simply ask the courts to do what they do in every other context, which is to check and see if that implementing legislation is consistent with our basic chartering document. it is the government's position -- their theory is if the non-self-executing treaty is valid, the implementing legislation is ipso facto, somehow valid. and by the convention before this court -- think about the convention before this court. it puts an obligation on any arresting official to provide notification. i suppose it would be a rational way to implement that convention, to have a national police force. every arresting officer is a federal officer who is fully apprised of the convention and responsibilities. it would not be remotely consistent with our constitution. that same non-self-executing
treaty could be validly implemented by chartering the state department to work with police officers to understand their obligations. >> do you think it would be difficult for a judge to ask, is there any possibility that there is any other country in the world that has the slightest interest in how the united states or any of its subdivisions deals with a particular situation involved in this case? >> that would be one way of approaching the question. >> that would be beyond the ability of federal judges when a case like this comes before them? >> i don't think it would be a bond -- beyond their ability, or the ability of a federal judge to say, let's ask the question in the absence of the non-self-executing treaty, would congress have the power to pass the statute? if the answer is no, the burden shifts to find out why it is that the treaty add something to
the powers of the federal government. just to make clear, this is a different context from what the court had. the treaty itself prohibited individual action. an individual violated the treaty if they took migratory bird out of season. in that sense, the enforcement statute did nothing more than put a criminal penalty on violating conduct that was already prohibited to the individual. >> is that one way to characterize your argument, or two unfairly confining to your argument to say what you're suggesting is something like a clear statement rule, that if the treaty intends nationstates to have their own constitutional structures superseded, at a minimum it has to say so, and then we will come to the question whether or not they can do it. >> it would be a fair characterization of our
argument. the one place this convention talks about imposing obligations on individuals is a promise by the nationstates to pass penal legislation that is in accordance with their constitutional system. it's very bizarre that article seven, section one says in 33 -- 33a -- a united states promised to pass legislation that comports with our constitutional process to say the convention allows us to pass legislation that does not comport with our constitutional process. >> i don't understand how you distinguish sarin gas. why is sarin gas different from vinegar? >> because sarin gas is more
equivalent to something that the congress would try to deal with like the way they dealt with marijuana. it is a reflection of the idea that when you are talking about things, where the federal government is trying to prohibit, there is a greater federal power to do it. it may be that with sarin gas, the federal congress can say, it is inherently a chemical weapon, and were going to prohibit people from having that. that's very different from these situations where, if you think about it, the only thing that makes these chemicals chemical weapons instead of chemicals is their internal, intrastate use in a malicious way. and that's different, i think, from at least a hypothetical statute that says, look, here are -- i mean, there's three schedules in the statute, 43 different chemicals that are particularly problematic. if the federal government wants to regulate those and prohibit the unauthorized possession of those, i don't see why they couldn't do that with or without the treaty. but when -- what is so anomalous
here is the idea that these chemicals, everything, rat poison, vinegar, whatever it is, these things are perfectly lawful, we don't think of them as chemical weapons, unless and until they're used in a malicious way, and then all of a sudden they become classified as chemical weapons. that's a very odd statute. but it does i think operate in a way that is just inconsistent with the bedrock principle that the federal congress just doesn't have this kind of police power. >> is the chemical used here one of the chemicals that's listed in the annex to the treaty -- >> i don't believe so. it's certainly not one that is listed on the three schedules. there are 43 chemicals. neither of these are on there. and i do think there is an important difference because -- this is perhaps an odd way to think about it, but, you know, this is a statute that's really trying to regulate nouns, chemical weapons. and with respect to something like weaponized chemicals or sarin gas, it makes sense to say those are chemical weapons. but with respect to otherwise harmless chemicals, the only thing that under the government's theory turns them from chemical weapons -- i'm sorry -- from chemicals into chemical weapons isn't a noun, it's a verb. it's their malicious use. and that puts you in a very odd sort of situation. i think that, you know, if
congress had come in and said, look, there are certain chemicals that by their very nature are almost inherently weaponized, i think congress would have a lot more authority to proceed in that kind of situation. >> counsel, we permit that in all sorts of definitional sections of the criminal code. we call a dangerous weapon anything that you use to inflict serious injury on someone. i don't think of a car as necessarily a dangerous weapon. it is something i use to transport myself. it's only when i'm using it for a prohibited purpose that it turns itself into a dangerous weapon. >> well -- >> so i'm -- i'm having a problem with this noun-verb distinction. why isn't the intentional burning, killing of another human being using chemicals the essence of what this treaty is trying to stop? i thought that's what it was trying to do.
>> a couple points -- >> you want to add on the war-like purposes. but the treaty permits exceptions for any peaceful purpose. >> justice sotomayor, a couple of points. first of all, generally, you might be right that -- that the criminal law takes objects that are otherwise innocent and say they can be used in a malicious way and criminalizes it. but most of that work is done by state and local criminal law, and at the federal level you need something else. you need a jurisdictional element, something that has a distinct federal concern. second, as to the concerns about this convention >> the treaty power. >> well, i don't think that the treaty power -- >> that's what was said in the -- >> especially when there's this much of a disconnect between what the treaty power does and what the statute does, which is the treaty, again, does not directly regulate at all individual conduct. it is regulated at nation state conduct. now, with all due respect, i don't think that nation states poison romantic rivals, attempt to commit suicide or try to get rodents out of their houses. and so when individuals do those
things, i think it's -- it's hard to draw an analogy between what's forbidden to a nation state and the individual action. but any work that is done in the statute by drawing that analogy is done by the statute and not by the convention. so i don't >> so if a terrorist took these chemicals and put it on every doorknob in boston, that wouldn't be regulated by this or -- the very exact same chemicals. >> right. and we would say that under our narrowing construction, that that's covered. >> because it's war-like. >> because it's a war-like use of the chemicals. >> all right. now we have -- >> we would also point out for the record that that same conduct would obviously be covered directly by federal statutes that target terrorism directly. so no matter how you decide that case, whether you accept our narrowing -- if you accept our narrowing construction, that conduct will be covered by two federal statutes. if you don't accept our narrowing construction but hold this statute unconstitutional, then that conduct is still going to be covered. and i just think when you try
again to think about what the convention is after, it is not really after ms. bond's conduct. i don't think any one of our treaty partners said, oh, my goodness. there's been a deployment of chemical weapons in norristown, pennsylvania, i sure hope the united states steps up to its treaty obligations and prosecutes this horrible deployment of chemical weapons. nobody would say that because nobody speaking normal english would identify this as a deployment of chemical weapons at all. >> well, but, mr. clement, it's absolutely clear that the treaty was after enforcement as to individuals with respect to all the prohibitions, that the treaty said, go enforce this as to individuals and do it consistent with your constitutional processes. and then congress passes a law that is consistent with its constitutional processes, and it completely mirrors the treaty. >> two things, justice kagan, neither of which will surprise you, i suppose. one is i don't think this is consistent with our constitutional processes.
>> i guess i'm still trying to figure out why. i mean, holmes dealt with this in missouri v. holland. he says there's a treaty power, it's an enumerated power, there's a necessary and proper clause that functions to allow congress to give effect to that treaty power. it's -- you know, this is a -- a situation where there's a prohibition on the states in terms of entering into treaties or in terms of sharing that power in any way. and he says, you know, it's just these invisible radiations that you think come from the structure of the constitution. and he specifically rejected this argument, the same argument that you're making, the penumbras and emanations of the constitution. >> justice kagan, i think you have to read missouri v. holland both in the context of the treaty that the court had before it and the argument that it had before it. missouri made a very strange argument in missouri v. holland, one that no modern litigant would make. they made an argument that -- they went out of their way to identify a conflict between the federal treaty and state law and
said, therefore, we win under the supremacy clause. and holmes scratched his head and said no. the treaty under -- under article 6 is supreme to both state law and not the other way around. but he also said this one sentence that sort of bedeviled the lower courts here, which says, well, and if the treaty's valid, of course, the legislation is valid. that made sense in the context of the treaty he had before him, because he had a treaty that directly prohibited individual conduct and a statute that enforced that individualized prohibition with criminal penalties. so in that case, i suppose it was right, that the treaty and the implementing legislation stood or fell together. that's not the case here. if i could reserve my time. >> thank you, counsel. general verrilli? >> mr. chief justice, and may it please the court, the framers gave the federal government exclusive control over the treaty function to ensure that it could knit the nation together as one and allow it to be fully sovereign in the conduct of foreign affairs. petitioner's ad hoc "too local"
limit on the treaty power can't be squared with a judgment the framers made, this court's precedent, or consistent historical practice since the time of the founding, and it would compromise foreign affairs and national security interests of the first order. >> general, let's suppose there's a multilateral treaty, the -- the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power. and congress passes a statute saying we have the authority to prosecute purely local crimes pursuant to this international convention that the president has signed. any problem with that? >> there may well be. let me walk through the analysis that i think you'd have to go through. first, i would make the point, mr. chief justice, that it seems unimaginable that a convention of that kind would be ratified by two-thirds of the senate, which it would have to be.
>> it also seems unimaginable that you would bring this prosecution. but let's leave that. [laughter] >> and that does go to the point >> and just to press it further, the -- the point is that it's a transfer of authority from the states to the national legislature. i don't know why you'd look to the national legislature to say, well, we'd never do that. >> well, the framers thought that the two-thirds guarantee -- the two-thirds ratification requirement, was an important structural guarantee to protect the interests of the states. >> at a time when the senate was elected by the state legislatures. >> yes, mr. chief justice. but there's no doubt that the framers thought that would be an important protection. but beyond that, this court has said that that there is an inquiry. it said in dictum. it has never held that a ratified treaty exceeds -- exceeds the federal government's constitutional authority. it's never held that a provision implementing a ratified treaty exceeds the federal government's constitutional authority. >> so your answer is if -- if that unimaginable thing should happen, it would be ok? >> no. >> all right.
>> my answer is this -- that the court has said that there is an inquiry into whether the -- it is a proper subject of a treaty and that that inquiry could take into account whether it is imposing a fundamental change in the character of the government. but that's not a question the court needs to answer here, because this treaty, the -- the petitioner concedes, is a valid exercise of the treaty power, and the legislation implementing this treaty is coextensive with the obligations of the treaty. there is no -- >> i don't know why it would not be a valid exercise of the treaty power. a case like medellin caused serious conflict with our international obligations because we held, look, the federal government does not have the authority to tell the sheriff in texas what to do. that caused a great deal of strain in -- in our international relations. and i think the united nations could well say, look, we don't want treaty parties to have to deal with whether it's somebody in this state or somebody in that province who has the authority, so every signatory
must have the authority. it doesn't strike me as not reasonably related to international obligations. >> all right. but -- but here, mr. chief justice, this is a valid exercise of the treaty power, and there is no daylight between the implementing legislation and the obligations that the petitioner concedes are valid. >> no, no. i know your -- i know the case -- >> and therefore -- and therefore, that may be a question that the court would have to answer in a different case. but this case doesn't present the opportunity to answer that question. >> so the -- the purpose of my hypothetical was try to find out if there's any situation in which you believe an erosion or intrusion by the federal government on the police power could be a constraint against an international treaty. >> there -- there may be an outer bound, but this case is nowhere close to it. and -- and it isn't -- it can't be a "too local" exception to the treaty power, which petitioners argue. >> well, it seems to me that if you say there may be an outer bound but this case isn't one of them, you're subjecting yourself to the same criticisms that have been leveled against the other
side, that you're proposing a case-by-case evaluation with respect to each treaty. >> no. i think, your honor, that the question here is whether this legislation validly -- it validly implements a valid treaty. the treaty is concededly valid. the legislation is concededly valid on its face. >> i'd like to -- i'd like to explore that, your proposition that there's no daylight between the treaty itself and the implementing legislation. it seems to me there -- there's a lot of daylight between the two. let's take -- and i pick this example not because it's controversial, but because it relates to an area where the federal government has never been thought to have authority, namely family law. there are no, you know federal marriage, federal divorce, federal adoption. it's all been state law. let's assume that an international treaty is approved by two-thirds of the senate and
the president which requires states to approve same sex marriage. all right? now, if -- if that were a self-executing treaty, same sex marriage would have to be approved by every state. if it is not self-executing, however, it will be up to congress to produce that result, and congress would do it or could do it at least by having a federal marriage law. and then you would have to have a federal divorce law and, i suppose, a federal adoption law. i think there is a big difference between just doing it through a self-executing treaty and dragging the congress into -- into areas where it has never been before. i think there is daylight between the treaty and requiring the treaty to be implemented in the fashion that you assert is
necessary here. >> your honor, i'd like to make a structural point and then a specific point about this case. the structural point, justice scalia, is this -- if it is the case, as your honor's hypothetical seems to concede and as i believe petitioner concedes, that a self-executing treaty that requires the president to negotiate and two-thirds of the senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty that is -- that has the same approval of the president, the same two-thirds ratification, and the additional structural protection of passage of legislation by the senate and the house and being signed into law by the president, can do what the self-executing treaty can do. it has to be the case. the power, if the >> i don't think it has to be the case. i think there -- there's a great difference between requiring the states by a self-executing treaty to permit same-sex marriage and dragging the federal government or allowing
the federal government to enter into this whole field of marriage, divorce, adoption, family law, where the federal government has never been. >> well, with respect, now the point with respect to this treaty. i don't think that, with all due respect, there is any daylight here with respect to this treaty. section 229(a) does precisely what the treaty obligates the united states government to do, and i think the notion that the treaty obligation can be satisfied by relying on the states to enforce their assault laws, which i think is the core of my friend's argument here, is directly contrary to the history of the framing >> it is? it is? it is? that's the part that i can't yet get my mind to these dramatic questions of whether here the local police power or in some other case some other inherently state power make a treaty beyond the power of the federal government to enter into.
it's a very big question. but i'm not there yet. and the reason i'm not there is because there's some words in this treaty called "other peaceful purpose," and we have to interpret those words and the same words are in the statute. and my question to you is -- what reason is there to think that those matters on list a fall within those words? what is list a? it's infinitely long. a few things on it are in holmes' opinion in peasley, a great case on attempted murder where he talks about paying a small boy to move a barrel of kerosene with a candle in it alit, so that it will burn down a barn after a few hours. the kerosene is a chemical. he talks about a case where a person went to a racetrack and gave a horse a poison potato. he talks about a case involving somebody else trying to light a
match, which is a chemical, and setting fire to a haystack. we can all think sadly of athletes, lance armstrong, at least accused of unlawfully taking drugs. i mean, why do we think matters of list a fall within those words, outside the words "other peaceful purpose," even though they're unlawful? and by the way, did anyone say to the drafters of the convention -- i found nothing in this brief on the point -- or did anyone tell congress that poison potatoes, drug-enhancing, performance-enhancing drugs, the example that justice alito used last time, you give vinegar to a goldfish -- i mean, these are all chemicals not in the annex, but they are chemicals. and they are absolutely nothing to do with chemical weapons. and why do we think that we have
to get beyond that fact? >> this is a very important point here, and it gets i think to the heart of what the national interest is in this case with respect to this treaty and this implementing legislation. and the harm inheres in the process of line drawing. what the petitioner is asking as a rule of either constitutional law or statutory construction is that courts, on a case by case basis, after the fact made ad hoc judgments about whether they >> no, no. there's an easy way out of that. all we do is say the chemicals involved are the chemicals in the annex. but you're not prepared to say that, i guarantee it. >> no -- no, i'm not. >> ok. now, we're outside the annex. and i guess once we get outside the annex, we either have to draw lines or we have to say, well, this encompasses the poison potato, the poisoned goldfish, the small boy with the candle, the -- for performance-enhancing drugs. i would say judges are here to draw lines, and between throwing all those things into it or drawing lines, it's better to
draw a few lines. >> we can -- we can talk about hypotheticals, but the key point about them is that they're hypothetical. >> no, no. these are real cases, by the way. the poison potato was in fact -- >> the vinegar and the goldfish is not a real case, and i would submit that de minimis non curat lex. >> they're not real -- they're not real cases because you haven't prosecuted them yet. [laughter] >> if you told ordinary people that you were going to prosecute ms. bond for using a chemical weapon, they would be flabbergasted. it's it -- it's so far outside of the ordinary meaning of the word. >> if her child had died -- >> this statute has an enormous -- an enormous breadth, anything that can cause death or injury to a person or an animal. would it shock you if i told you that a few days ago my wife and i distributed toxic chemicals to a great number of children? >> your honor, i understand the point.
[laughter] >> on halloween we gave them chocolate bars. chocolate is poison to dogs, so it's a toxic chemical under the --mical weapons >> i think de minimis non curat lex would take care of that, but this -- there is serious -- this is -- >> there's chocolate all over the place. >> do horses eat potatoes? i didn't know horses ate potatoes. >> this is serious business. with all due respect, the line that the petitioner is asking >> no, i'm not -- i want your answer to the line -- my question was a question to get your answer. and the answer that i wanted you to address yourself to is the problem of once you depart from the annexes in defining the chemicals, you throw into it a list a thousand miles long. and we can tell joke after joke, but it's not a joke that it's so easy to make up examples that seem to have nothing to do with the problem of chemical weapons
like the syrian problem, nothing to do with that. >> i understand that, your honor, but the law >> so what is your answer? that's what i want to know. >> if you will permit me to answer the question this way -- the line that the petitioner is asking courts to draw is whether the particular use is warlike or whether it constitutes a peaceful purpose under this convention and under the implementing statute. well, the very -- one of the very things we are trying to sort out right now in syria under the chemical weapons convention is where the line is between peaceful uses and warlike uses. and this phrase, "peaceful uses" is not only in the chemical weapons convention, it's in the nuclear nonproliferation treaty, and we're engaged in very sensitive negotiations right now under the nuclear nonproliferation treaty trying to draw exactly the same line. and it would be terribly unfortunate, i would submit, if the court were to announce in
the context of this case, as petitioner is asking, a definition of what warlike constitutes that could have an unfortunate bearing on those -- >> why don't you tell us -- can you tell us what the line is that we're trying to draw? >> and the framers of the convention and congress in implementing the convention made a judgment that there needs to be a comprehensive ban and that you can't be drawing these kinds of lines because you can't -- >> well, general, could i ask why that is? i mean, because this -- this convention and the implementing legislation is very broad and it's broad because it applies to a very large category of weapons and it applies to a very large category of uses, of conduct. so what were they thinking about, about why they wanted these very broad categories, why it's not more limited with respect either to the chemicals or to the conduct -- >> well, with respect to the chemicals, i think they made the judgment because you can't predict in advance how chemicals
are going to be used and how toxic they will be in particular combinations and how dangerous they will be in particular combinations and therefore you need a comprehensive definition. >> well, look, also if you' telling me i am attempting to draw the line. that's just what i was going to do. and if you're saying it's against the national security interest, which is the first time i've heard that, that it is the national interests -- against the national interests of the united states for me to attempt to draw such a line, then i guess the state department better file a brief explaining why or you ought -- or why you -- why you want to push this case or -- i mean, i'm -- is that what you're telling me, that if i write the opinion that i think the law requires me to write that i somehow am hurting the national security interests of the united states? >> well, i think there is a -- i think there is a real risk in courts getting involved in defining the line between warlike and peaceful purposes -- >> you're the one -- >> and the meaning of the convention when the -- when the convention is purposely drafted broadly. and there -- there are additional risks in terms of
this -- the very act of bringing this process of line-drawing to bear, case-by-case, ad hoc judgments about what constitutes a violation and what doesn't is going to undermine the ability of our negotiators into make treaties in the future because they are -- >> but you did not give the line to the chief justice's question where there was a treaty that intruded on the federal structure. you can have a treaty where the president is required to set aside any state law that in his view contravenes a national interest. that's a structure problem. you've -- you've given us no -- no principle the other way. >> well, i -- what i think it would, justice kennedy, would suffice to decide this case, were the court to conclude that the "too local" limit that the petitioner is advocating here as an as-applied, case-by-case "too local" limit is not one that is inconsistent with the constitutional structure because if you go back to the framers, it is clear from the era of the framing that the framers
intended to give the national government the power using >> well, is it your precept, then, that a treaty cannot be inconsistent with our constitutional structure? >> this court has said that the -- this court has said that, in dictum, repeatedly, but it has said that the -- the treaty -- there's a question in a treaty power case of whether the subject matter of the treaty is a proper subject for a treaty. that's a question the court can ask. and -- and although i'm not prepared to draw a specific line here today, there -- there may well be a line to be drawn. but here, the petitioner has conceded and i think all of us would agree, this is the proper subject of the treaty. >> but there are a lot of treaties, particularly i think justice alito pointed out, after the world war ii era where you have international conventions affecting everything. we have international conventions on the abduction of children, international conventions that -- human rights. they cover a vast swath of
subject matter. and it seems to me the only thing you're saying that is a limit on what the treaty power can be as a source for is some determination, no more less -- no less arbitrary than the lines other people are asking us to draw between what's appropriate under the treaty power and what's not. and i just would like a fairly precise answer whether there are or are not limitations on what congress can do with respect to the police power. if their authority is asserted under a treaty, is their is their power to intrude upon the police power unlimited? >> if the -- if the treaty -- well, the way i would answer that, mr. chief justice, is if the treaty is valid >> ok. the treaty is valid. >> then implementing legislation that doesn't go beyond the treaty is valid even if it addresses a subject that would otherwise be within the police power of the states. >> ok. >> that is the judgment the framers made and that's what -- that's this case. and so, because the treaty is
valid, the petitioner's concede that the treaty is valid, this statute implements the treaty word-for-word implementation of the obligations that -- >> so you would rather have the court determine, if we're concerned about the intrusion on the police power, whether treaties are valid or not than whether -- determine whether particular implementing legislation is valid or not. >> no. i think, your honor, that because it is conceded in this case that the treaty is valid, and the petitioner hasn't elaborated any argument or any principle that would allow this court to make a judgment about when an exercise of the treaty power is valid and when it isn't, that you've got to take as a given in this case that the treaty is valid. >> i know this case. trying to get your generalcal is principle. i can imagine treaties that you would say are within the treaty power, again, particularly in the post-world war ii era, but that could give rise to implementing legislation that i think would be extraordinary from the point of view of the framers and the power that it gave congress to intrude upon state authority.>> so there is f
limitations, you know, as i said earlier. the two-thirds ratification requirement is real with respect to this. one of the treaties your honor just referred to, the u.n. convention on civil and political rights, of course, when the senate ratified it, it did use its power to make reservations to preserve our federal system. so that operated in exactly the manner that the framers intended there to protect, to safeguard the interests of federalism. and there are, you know, there are about 1,000 ratified treaties on the books right now and we don't have the congress using the treaty power to usurp the role of the states >> oh, no. that isn't the problem. >> it's -- it's kind of question begging. i mean, the whole point is that some people think we do have exactly that in this case. now, usually when we have a case that implicates significant and serious bilateral concerns, we get a lot of briefs and all that
from our -- our treaty partners. is there any concern that's been expressed in any concrete way by them about whether mrs. bond is prosecuted? >> i doubt that, your honor, because -- >> no, no. yes. so nothing in -- >> nobody -- no -- nobody would -- we're not saying -- and i don't think anybody would say that -- that whether or not ms. bond is prosecuted would give rise to an international incident. the question is whether congress has the authority to pass a comprehensive ban. now, there may, of course, be applications of that comprehensive ban that don't advance the national interest in a profound or poignant way, we understand that. but the question is whether congress can pass a comprehensive ban implementing a treaty. >> that is the question. >> and, general, don't we have an amicus brief from almost all of the legal counsels of the state department, republican and democrat, talking about how if petitioner's argument were accepted, it would severely damage the united states' ability to enter into and to negotiate treaties. >> that's right. and that -- and that's true, it's -- and that's certainly true. >> i'm sure that the people who've worked in the national branch of government,
particularly for the state department, would like to have as much authority as they can get to negotiate treaties. we're concerned about limitations on other. do we have any briefs from state legislatures, state authorities, concerning intrusion on their prerogatives? >> your honor, this convention is a convention that all but four nations on earth have signed. the legislation that we have enacted is model legislation that over 120 other nations have enacted as well. >> whenever -- when this court has issued decisions in recent years holding that there are some limits on congress's power, cases like lopez and morrison and city of boerne, there have been legal commentators who have written articles saying that could be circumvented to -- through the use of the treaty power. do you agree with that? >> i don't think there's a yes or no answer to that. i think that -- because i don't think it would be -- the question would be -- what does the treaty power encompass?
it wouldn't be a circumvention if this is something that could be constitutionally done under the treaty power, but >> could you -- all right. i'll take back the word "circumvention." could you reach the opposite result? could it -- could congress -- regulate the possession of a gun within a school zone by entering into a treaty that authorizes such legislation? >> i think the question in that case would be whether the treaty is a valid exercise of the treaty power. >> oh, it is. that is the problem. there is an underlying -- i don't mean to cut you off, but at some point you seem not to see a problem that i think i see. and the problem underlying it, if you get into the treaty area is this -- given the power, as there is in medellin's majority, to have some self-executing treaties, in principle your position constitutionally would allow the president and the senate, not the house, to do anything through a treaty that
is not specifically within the prohibitions of the rights protections of the constitution. that's missouri v. holland. and i doubt that in that document the framers intended to allow the president and the senate to do anything. now, you ask us now to say whether the answer to that question is yes or no. we still have a democracy, in other words, of which the house is part. now, if you carry it to an extreme, that's what you are, that's where you are, and i am worried about that and i think others are, too. so i had asked you -- isn't there an easier way to deal with this case? and you tell me -- no, no, because we will interfere with some problem of foreign affairs that was never mentioned in any brief, or at least hit me for the first time when you said it. now, there you have an expression of my uncertainties at the moment, and any way you want to reply to that would be helpful. >> i understand the point, justice breyer, i do. i understand that there is
something that seemed attractive to think about this as a question of statutory construction. what i'm trying to point out is that it's not as easy as it seems, that there are real risks to trying to draw a line of that kind. and yes, that does -- i understand that. that does raise the stakes some, i understand that. but i think that risk is real, and i think that risk is real, the risk that the state department legal advisor's brief pointed out is real of undermining our ability >> general verrilli, before your time is out, you haven't answered directly why the bill of rights does constrain the treaty power, the implementation of it, reid v. colbert? why is the bill of rights different from the federalism concern that the court has expressed in many cases, when you say, yes, there is a check,
the bill of rights is a check, but not the tenth amendment? >> there is a historical answer to that question, justice ginsburg, which is that that's how the framers understood it. i think that's clear from what hamilton said in the -- in the quotes that we have in our brief, and others of the framers understood that that's where the line would be. and i think the reason for that is that the treaty power is itself a great and substantial independent power of the national government. and it is not constrained by a "too local" limitation. that is the lesson of the era of the framing, that there is a not a "too local" limitation on the exercise of the treaty power. and therefore, while >> all of those quotes pertain to self-executing treaties. yes, there is no limitation on what -- what the president and the senate can impose as a self-executing requirement, namely that the states must give back to british citizens
property that they confiscated or whatever else. but it's a different question whether a treaty can expand the power of the federal congress into areas that it has never been before. that's a separate question. and neither hamilton nor any of the other quotes that you refer to address that question. >> your honor, so long as the treaty -- it's a valid exercise of the treaty power, i think a fortiori if all you do is implement the treaty in haec verba, it's a valid exercise of congress' power. and i will say, i said earlier that this is serious business. i understand that principles of federalism are serious business also, but federalism is a two-way street. and with respect to the exercise of the treaty power, the framers made a judgment that this power